An obligatory sign of dishonesty in competition is misleading the consumer of goods, works, and services regarding the nature, method, and place of production, consumer properties, quality, and quantity of the product or its manufacturers
By the resolution of the specialized interdistrict Administrative Court of Almaty dated January 21, 2016, the limited liability company "M" (hereinafter referred to as the Partnership) imposed an administrative penalty in the form of an administrative fine in the amount of 2,000 monthly calculation indices (hereinafter referred to as MCI), which amounts to 3,964,000 tenge for committing an administrative offense under part 3 of Article 163 Administrative Code. The offense resulted in repeated commission of unfair competition within a year after the imposition of an administrative penalty in terms of the misuse of means of individualization of goods, works, services, as well as objects of copyright. By the decision of the Appellate Judicial Board for Civil Cases of the Almaty City Court dated April 12, 2016, the decision of the court of first instance remained unchanged. According to the Department's protocol No. 51 dated December 18, 2015, the Partnership operating under the Tele2 trademark held the "Bonus for incoming calls from Kcell and Activ" promotion from June 22 to October 2, 2015, and the "Phones for Free" promotion from July 13 to October 2, 2015. Under the terms of the promotions, subscribers of the Partnership, receiving incoming calls from Kcell and Activ subscribers, received bonuses in the form of funds to the main balance in the amount of 5 bonuses per 1 minute of conversation, while 1 bonus was equal to 1 tenge. Bonuses were awarded every night for the previous day and were valid for 30 days from the moment of accrual. The bonuses were non–refundable, but could be used to pay for all types of services provided by the Partnership, and under the "Phones for Free" promotion, they could be used to purchase phones, smartphones, tablets, modems, and routers from the Partnership. According to the protocol, the use by the Partnership of the trademarks "Kcell" and "Activ" in promotions, which the Partnership does not own, constitutes unfair competition, expressed in the misuse of means of individualization of goods, works, services, as well as objects of copyright.
An obligatory sign of dishonesty in competition is misleading the consumer of goods, works, and services regarding the nature, method, and place of production, consumer properties, quality, and quantity of the product or its manufacturers
According to part 3 of Article 163 of the Administrative Code, an action provided for in part two of this Article, committed repeatedly within a year after the imposition of an administrative penalty, entails a fine of two thousand MCI for large businesses. Part 2 of Article 163 of the Administrative Code provides for administrative liability for unfair competition. Unfair competition, according to paragraph 1 of Article 16 of the Law of the Republic of Kazakhstan "On Competition" (hereinafter referred to as the Law on Competition), which was in force at the time of the offense, is any action in competition aimed at achieving or providing undue advantages, as well as violating the legitimate rights of consumers. By virtue of subparagraph 1) of paragraph 2 of Article 16 of the Law on Competition, unfair competition includes the misuse of trademarks and packaging. According to article 17 of the Law on Competition, the illegal use of trademarks, packaging is the illegal use of someone else's trademark, service mark, brand name, appellation of origin or similar designations for similar goods or the use without the permission of the copyright holder or an authorized person of the names of literary, artistic works, periodicals, or the use of packaging in in a way that may mislead the consumer about the nature, method and place of production., consumer properties, quality and quantity of the product or in relation to its manufacturers. According to subparagraph 8) of Article 1 of the Law of the Republic of Kazakhstan dated July 26, 1999 "On Trademarks, Service Marks and Appellations of Origin" (hereinafter referred to as the Trademark Law), a trademark, service mark (hereinafter referred to as trademark) is a designation registered in accordance with the Trademark Law or protected without registration by virtue of international treaties in which the Republic of Kazakhstan participates, which serve to distinguish the goods (services) of some legal entities or individuals from similar goods (services) of other legal entities or individuals. According to paragraph 4 of Article 4 of the Trademark Law, the trademark owner has the exclusive right to use and dispose of the trademark belonging to him in respect of the goods and services indicated in the certificate.
No one may use a trademark protected in the Republic of Kazakhstan without the consent of the owner. In accordance with paragraph 1 of Article 43 of the Trademark Law, the unauthorized introduction of a trademark or an appellation of origin or designations confusingly similar to them into civil circulation in respect of similar goods and services is considered a violation of the exclusive right of the trademark owner or the right to use an appellation of origin. – in relation to any goods and services. Unauthorized use of a trademark or an appellation of origin in publicly accessible telecommunication networks (the Internet and others) is also recognized as a violation of the exclusive right of the trademark owner or the right to use the appellation of origin. Also, according to part 1 of Article 1024 of the Civil Code of the Republic of Kazakhstan (Special Part) (hereinafter referred to as the Civil Code), a trademark (service mark) is a verbal, pictorial, three–dimensional or other designation registered or protected without registration by virtue of an international agreement, which serves to distinguish goods or services of one person from similar goods and services of other persons. The use of a trademark, in accordance with Part 2 of Article 1025 of the Civil Code, is considered any of its introduction into circulation: manufacture, application, import, storage, offer for sale, sale of a trademark or product marked with this mark, use in signage, advertising, printed products or other business documentation. The legislation of the Republic of Kazakhstan on trademarks, service marks and appellations of origin consists of the Civil Code, the Trademark Law and other regulatory legal acts of the Republic of Kazakhstan. If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in the Trademark Law, the rules of the international treaty shall apply. According to article 10.bis of the Paris Convention for the Protection of Industrial Property of March 20, 1883, any act of competition that contradicts honest customs in industrial and commercial matters is considered an act of unfair competition.
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